Opinion
March 4, 1996
Adjudged that the petition is granted to the extent that those portions of the determination which (1) granted relief against the appellant New York City Transit Authority, and (2) awarded $25,000 to the respondent Philip McCartin for mental anguish against the appellant Manhattan and Bronx Surface Transit Operating Authority, are annulled, on the law and the facts, without costs or disbursements, the determination is otherwise confirmed, the proceeding is otherwise dismissed on the merits, and the matter is remitted to the respondent New York State Division of Human Rights for the imposition of a new award for mental anguish not to exceed $7,500.
Those portions of the determination of the respondent New York State Division of Human Rights which found that the appellant New York City Transit Authority (hereinafter the NYCTA) had discriminated against the appellant Philip McCartin and directed relief against the NYCTA must be annulled. The complaint was never amended to include allegations of discrimination against the NYCTA, and the NYCTA had no notice that it would be charged with discriminatory acts separate and apart from any alleged acts of discrimination on the part of Manhattan and Bronx Surface Transit Operating Authority (hereinafter MABSTOA) until the hearing in this matter commenced ( see generally, Zaiman v Metropolitan Tr. Auth., 186 A.D.2d 555; Reis v Manhattan Bronx Surface Tr. Operating Auth., 161 A.D.2d 288).
There was substantial evidence to support the finding that MABSTOA discriminated against the complainant on the basis of his physical disability. However, the award of $25,000 against MABSTOA, representing compensatory damages for mental anguish and humiliation was excessive. The complainant testified that as a result of the discriminatory acts, he felt "very upset" and "very angry", and was reluctant to wear his hearing aids during other interviews. This testimony only supports an award of up to $7,500 against MABSTOA for mental anguish and humiliation ( see, Matter of Port Washington Police Dist. v State Div. of Human Rights, 221 A.D.2d 639; Matter of Manhattan Bronx Surface Tr. Operating Auth. v New York State Executive Dept., 220 A.D.2d 668; Matter of New York State Dept. of Correctional Servs. v State Div. of Human Rights, 215 A.D.2d 908; Matter of Quality Care v Rosa, 194 A.D.2d 610).
The parties' remaining contentions are without merit. O'Brien, J.P., Santucci, Altman and Goldstein, JJ., concur.